News Release
June 12, 2023
ALF Files Supreme Court Amicus Brief In Internet "Informational Injury" Case

Issue To Be Decided:

Does A Self-Appointed "Tester" Plaintiff Have Standing To Sue If She Has Suffered No Actual Harm From Omission Of Federally Required Information On A Business Website?

"Watering down the requirements for standing to pursue Internet-based 'informational injury' suits may serve the interests of the plaintiffs’ contingency-fee bar, but would further clog already overburdened courts and impair free enterprise. Enforcement of online informational requirements should be left to federal authorities, not self-appointed tester plaintiffs."
Atlantic Legal Foundation
Personal injury “failure-to-warn” suits long have been a well-accepted component of state tort law. Even failure-to-warn claims for intangible injuries such as emotional distress and reputational harm are allowed under certain circumstances. But what about the new frontier of Internet-based “informational injuries” allegedly sustained as a result of visiting business websites that allegedly fail to provide the general public with information required by federal law? And what if a website visitor who alleges that she sustained such an informational injury had no intention of ever using the omitted information? Does she have Article III judicial standing to pursue an informational injury suit against the business owner?

This is the cutting-edge question that the Supreme Court has agreed to address in Acheson Hotels, LLC v. Laufer. According to Petitioner Acheson Hotels, the plaintiff is a self-appointed serial “tester” who trolls the Internet for small hotel/motel websites that allegedly fail to comply with an Americans with Disabilities Act (ADA) regulation requiring a place of accommodation to provide, as part of its online reservation system, accessibility information in sufficient detail to permit individuals with disabilities to assess whether the lodging meets their accessibility needs.

The plaintiff, who is disabled and has filed more than 600 such suits (the vast majority of which are settled rather than litigated), admits that she had no intention of ever physically visiting the small Maine inn whose website she alleges violated the ADA regulation at issue. The First Circuit nonetheless held in Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022), that she has standing to sue.

The Atlantic Legal Foundation has filed a merits-stage amicus brief arguing that conferring standing upon a “tester” plaintiff who has suffered no actual harm from the omission of online information required by federal law would establish a dangerous precedent leading to many types of Internet-based informational injury suits fueled by the plaintiffs’ contingency-fee bar. The amicus brief was authored by Sarah Spencer of Christensen & Jensen and ALF Executive Vice President & General Counsel Larry Ebner. The DRI Center for Law and Public Policy joined the brief as co-amicus.

The amicus brief argues that a “tester” plaintiff who suffers no actual harm by visiting an allegedly noncompliant website fails to satisfy the “case or controversy” requirement imposed by Article III of the Constitution, and the criteria established by Supreme Court precedent, for standing to file a suit. The brief explains that to establish standing, a plaintiff must have suffered “concrete” and “particularized” harm. The tester plaintiff in the Acheson suit has suffered neither. Her allegation that she felt stigmatized by the allegedly inadequate accessibility information on the inn’s website is not enough for her to have standing to sue.

The amicus brief also discusses the potential implications for instigating other types of “informational injury” litigation if the Acheson Hotels plaintiff is found to have standing. The brief identifies some of the numerous federal statutes, in addition to the ADA, that require, either directly or through regulations, informational disclosures and authorize certain limited private rights of action.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 45 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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